"One can have short term cease fires; one can even have peace agreements; but I do not believe that the sorts of cycles of violence that one has seen in the former Yugoslavia will stop without adequate justice," said Justice Goldstone, Chief Prosecutor of the War Crimes Tribunal for the Former Yugoslavia (the Tribunal). Justice Goldstone gave the keynote address at a panel discussion on the Tribunal sponsored by the Center for Human Rights and Humanitarian Law on February 23, 1995. [See related article, Prosecutor Goldstone Offers Views on War Crimes Tribunal in the Fall 1994 issue (Vol. 2, No. 1) of The Human Rights Brief.] Accompanying Goldstone on the panel were John Shattuck, U.S. Assistant Secretary of State for Democracy, Human Rights and Labor; Diane Orentlicher, Associate Professor of Law at WCL; and Tom Warrick, Counsel to Professor Sharif Bassiouni, who was formerly UN Chairman of the Commission of Experts on war crimes in the former Yugoslavia. WCL Professor Robert Goldman moderated the panel.
The Tribunal was created by UN Security Council Resolution 827 in May, 1993 under Chapter VII of the UN Charter as a measure to restore and maintain peace in the former Yugoslavia. Goldstone, who took a leave of absence from his position on the new South African Constitutional Court, was appointed Chief Prosecutor with the unanimous consent of the entire Security Council in July 1994. Since then, his office has issued 40 indictments, including one for genocide. Trials are scheduled to begin this summer.
The Tribunal's jurisdiction is limited to four general areas of customary and conventional international law, namely violations of the Genocide Convention, grave breaches of the Geneva Conventions, crimes against humanity, and violations of the laws or customs of war. The Tribunal's mandate was limited to these four areas because they are beyond doubt part of customary international law and would avoid the allegations of ex-post facto punishment that plagued the Nuremberg and Tokyo tribunals. Due to the magnitude of the crimes that fall within this mandate, however, charging and convicting transgressors will be difficult.
At the conference, Goldstone repeatedly emphasized the need for the Tribunal to stick closely
to the evidence, but added that the collection of testimony and documentation would be
complicated by the fact that witnesses are spread across Europe and throughout the war torn
Bosnia-Herzegovina. Goldstone stressed, however, that precision in the fact finding is essential
for the successful conviction of the perpetrators.
The Prosecutor's office has two primary goals in carrying out its mandate, according to Goldstone. The first is to establish the events that will form the basis of the prosecutions by identifying areas of the former Yugoslavia in which the most serious offenses occurred, and by recreating what happened through eye witness testimony. There are two reasons for this initial objective. First, it will identify patterns of conduct that are inconsistent with the merely spontaneous actions of paramilitary action in order to show that these atrocities were planned and that there was a command structure established by military and political leaders. Second, this approach will bring the most guilty perpetrators to justice, namely, the people who devised the policies that led to the atrocities and those who gave the orders for the crimes to be committed. Goldstone warned the audience not to dismiss the Tribunal as only trying "little fish." "To talk about people who are accused of having committed multiple murders rapes and torture of many people as little fish, seems to me, is a little demeaning to the victims and those who have suffered at [the accused's] hands," he said. Goldstone contended that the Tribunal is dedicated to prosecuting the leaders who authorized the worst atrocities. He emphasized that "simple participation in the political peace process will not immunize leaders from prosecution."
The Tribunal's second objective is to be even-handed. Goldstone defined this as imposing the same punishments for the same crimes, regardless of which side perpetrated the atrocity. "No side would be immune from prosecution," stated Goldstone.
Goldstone further acknowledged that it will be difficult to get all of those indicted before the Tribunal. He pointed out, however, that under Rule 61 of the Rules and Procedures of the Tribunal, a "super indictment" was available. This means that if an indicted defendant fails to appear, the prosecution could request that the indictment be confirmed by a panel of 3 judges. Once the indictment was confirmed, the accused would become an "international fugitive," an outlaw in almost every country in the world. Goldstone stated that the super-indictment could be enforced through the use of UN Security Council sanctions against any nation that shelters the accused. He also noted that any national leaders who might be indicted would eventually have to travel because of their responsibilities, and therefore would likely be arrested.
Secretary Shattuck, in his response, praised Goldstone and the Tribunal's work. He indicated that the United States would continue its commitment to the Tribunal's work, and noted that the U.S. government was the major advocate for the creation of the Tribunal. Shattuck also confirmed that the Clinton Administration was unwilling to trade impunity for peace during the peace process and stated that the Tribunal was part of an enterprise to create instruments of international accountability and the rule of law. He stressed that it is essential that the Yugoslavia and Rwanda Tribunals succeed in their tasks because this would send a message that the international community will not tolerate impunity.
In addressing the legal difficulties faced by the Tribunal, Professor Orentlicher indicated that this Tribunal would be expanding on the Nuremberg trials in terms of the development of international law. In particular, the Tribunal would need to define crimes identified at Nuremberg, and to decide whether crimes committed during internal conflicts could be tried by an international tribunal. Orentlicher stated that the Nuremberg trials had the benefit of victors' justice which, despite weaknesses, ensured that the defendants were captured and brought before the court.
In his presentation, Tom Warrick discussed the continued financial problems plaguing the Tribunal and indicated that the Tribunal still lacked the funds necessary for the collection of sufficient evidence to try crimes against humanity. Warrick expressed disappointment with the general lack of logistical and financial support for the Tribunal by the international community, especially on the part of European governments.
All of the panelists at the event recognized the daunting nature of the task faced by the Tribunal. At the same time, they also emphasized the need for the Tribunal to succeed in its efforts to bring justice to the worn-torn region that was once Yugoslavia, not only for the sake of the people of Bosnia and Croatia, but also for the future security of the international community as a whole.
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